Citation Nr: 9809539
Decision Date: 03/27/98 Archive Date: 04/14/98
DOCKET NO. 93-20 056 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for a right knee
disability, including osteochondritis and osteoarthritis,
currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Keith W. Allen, Counsel
INTRODUCTION
The veteran served on active duty in the military from
February 1970 to January 1977. Shortly after his discharge
from the military, he filed a claim at the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, for service connection for a right knee disability,
to include osteochondritis. His claim was granted by the RO
in August 1977, and the right knee disability was rated as 10
percent disabling.
Several years later, during 1991, the veteran sustained an
injury to his right knee while working at his civilian job.
He notified the RO of treatment, including surgery, that he
received for his injury. In January 1992, the RO assigned a
temporary 100 percent rating for his right knee disability to
cover a period of convalescence that he had following the
surgery. See 38 C.F.R. § 4.30 (this is commonly referred to
as “Paragraph 30” benefits). A 10 percent rating was
reinstated after termination of the temporary 100 percent
rating. In March 1992, the veteran filed a claim at the RO
requesting that the rating for his right knee disability be
increased permanently because his symptoms had grown worse.
His claim was denied by the RO in May 1992, and he appealed
to the Board of Veterans’ Appeals (Board). The Board
remanded the case to the RO in March 1995 for further
development of the evidence. After the development requested
was completed, the RO issued a decision in June 1995
continuing to deny the claim (the RO noted that the veteran’s
right knee disability also included osteoarthritis).
The case was returned to the Board. The Board issued a
decision in March 1996 agreeing with the RO that a rating
higher than 10 percent was not warranted. The veteran
appealed to the United States Court of Veterans Appeals
(Court).
While the case was pending at the Court, the veteran’s
representative and the Office of General Counsel for VA,
acting on behalf of the Secretary of the agency as his
representative in the appeal to the Court, filed a joint
motion requesting that the Court vacate the Board’s decision
and remand the case for further development of the evidence
and readjudication of the claim. The Court granted the joint
motion in an August 1996 order. [citation redacted].
The case was thereafter returned to the Board. The Board, in
turn, remanded the case to the RO in March 1997 for
compliance with the development and directives that were
specified in the joint motion.
In September 1997, after the development requested was
completed, the RO assigned another temporary 100 percent
convalescent rating for the right knee disability, from
October 1996 to January 1997. Upon termination of the
temporary 100 percent rating, a 10 percent rating was
reinstated. The veteran continued to pursue his appeal,
requesting that a rating higher than 10 percent be assigned.
His case has since been returned to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his right knee is far more severely
impaired than what is contemplated by the 10 percent rating
currently in effect. He says that he experiences recurring
pain, swelling and crepitus in the knee, especially during
prolonged physical activity of any sort, and that he is not
able to bear any amount of weight on the knee as he should.
He claims that his disability has prevented him from enjoying
life as others do and that it has also affected
his level of work performance at his job. He points out that
he has twice undergone surgery to treat his disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports a 20
percent rating for the veteran’s right knee disability.
FINDINGS OF FACT
1. The veteran has osteochondritis and osteoarthritis in his
right knee, and he experiences recurring pain and swelling in
the knee, in part, as a result of these conditions,
especially during prolonged weightbearing or physical
activity of any sort; he also has tenderness and crepitus in
the knee.
2. There is no more than moderate limitation of motion in
the right knee, and there is no medical evidence suggesting
that the veteran experiences recurrent subluxation or lateral
instability in the knee; the scars from his surgery are
well healed and completely asymptomatic, and there is no
indication of ankylosis, impairment of the tibia or fibula,
or dislocated cartilage following surgery.
3. The circumstances of this case are not so exceptional or
unusual as to render impractical the application of the
regular schedular standards and rating criteria for
determining the severity of the right knee disability.
CONCLUSION OF LAW
The criteria for a 20 percent rating, but no higher, for the
right knee disability have been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59,
4.71, 4.71a, 4.118, Diagnostic Codes 5003, 5257, 5260, 5261
and
7803-7805 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran received treatment on various occasions while
serving on active duty in the military for complaints of
recurring pain in his right knee. Osteochondritis was
diagnosed. When examined for separation from service in
January 1977, it was indicated that surgical intervention was
not believed to be necessary at that time, but that he
continued to experience occasional pain. He was discharged
from the military later in January 1977.
In February 1977, the veteran filed a claim with VA for
compensation benefits for the disability involving his right
knee. He was examined in June 1977 in connection with his
claim, and clinical findings of note included pain and
soreness in the area of the knee cap (patella) when walking
or running short distances.
X-rays of the right knee showed findings that were typical of
osteochondritis, and this was indicated in the diagnostic
impression.
The veteran sustained an injury to his right knee in late
September 1991 while working at his civilian job. For the
next several weeks after the incident, he complained of
experiencing recurring pain, tenderness and generalized
synovitis. There was no evidence of instability and minimal
effusion. In October 1991, after X-rays disclosed evidence
of a loose, floating fragment, he underwent arthroscopic
surgery at Baptist Hospital that involved a subtotal
synovectomy and debridement and repair of loose and torn
meniscus cartilage and tissue. There were no postoperative
complications. When examined for follow-up in November 1991,
it was indicated that his surgical wounds were healing as
they should, that he was beginning to gradually resume
weightbearing on the knee, with the assistance of crutches,
that his level of physical activity would be limited for the
next several weeks, and that flexion and extension in the
knee were improving.
A VA physician who examined the veteran in December 1991
indicated that he was obese, that he was in no acute
distress, that he appeared to be comfortable, and that he
walked with a cane. Physical examination of the right knee
showed the presence of the surgical scars. It was indicated
that there was no evidence of redness, effusion or soft
tissue swelling. There was some crepitus on passive range of
motion. Flexion of the knee was to 130 degrees and extension
to 0 degrees. There was no evidence of joint laxity on
stress maneuvers. The diagnoses were degenerative joint
disease (arthritis) of the right knee and status post
subtotal synovectomy and meniscectomy of the right knee.
Other records on file show that the veteran consulted private
doctors for further evaluation and treatment of his right
knee disability from December 1991 to February 1992. He was
gradually returned to full weightbearing status, and range
of motion in the knee, on both flexion and extension,
returned to normal. The scars from the surgery were
described as well healed and asymptomatic. He was given
permission to resume his normal level of physical activity,
including at his job. When he did, he began to experience
effusion and discomfort in the knee. After requesting
additional treatment, it was indicated that there was no
clinical evidence of effusion or instability, or redness or
erythema to suggest infection. Progressively developing
osteoarthritis and irritation related to the osteochondritis
were indicated to be the likely causes for his symptoms. His
overall medical status was described as unchanged. Non-
steroidal anti-inflammatory medication and a limited amount
of physical activity were prescribed.
Robert T. Snowden, M.D., examined the veteran in March 1992
for complaints of pain and swelling in the right knee. Dr.
Snowden indicated that the surgery that the veteran underwent
a few months earlier had not improved his pain, that he
complained that his knee “fe[lt] loose,” and that he also
complained of experiencing crepitus (grinding, popping, and
cracking) and frequent instability. On physical examination,
it was noted that the veteran walked with an obvious limp,
favoring his right knee, that there was perhaps a trace of
fluid in the knee, and that range of motion was essentially
normal. X-rays confirmed the presence of osteoarthritis
and osteochondritis. Dr. Snowden diagnosed degenerative
joint disease. Dr. Snowden indicated that he did not believe
that the veteran was physically capable of performing the
duties and responsibilities that were required of him
at his job (construction), primarily because of his weight
and age. Dr. Snowden recommended that the veteran receive
vocational rehabilitation and pursue any opportunities that
might be available for being re-trained in other types of
employment that were less physically demanding. The veteran
was told to continue taking his medication and doing the
exercises that had been prescribed.
The veteran received outpatient treatment from VA doctors at
various times from 1992 to 1994 for recurring symptoms
referable to his right knee. Clinical findings of note
included tenderness and exertional pain. There was no
evidence of instability, limitation of motion, or gross
effusion. The diagnoses were degenerative joint disease
secondary to obesity and prior surgery, osteochondritis, and
chronic pain. It was recommended that he lose weight, that
he exercise, and that he continue to take his medication.
During a VA orthopedic examination that the veteran underwent
in March 1995, he said that the condition of his right knee
was progressively deteriorating, as he continued to
experience chronic pain and recurrent swelling. He said that
his symptoms were especially noticeable during prolonged
squatting, stooping, climbing, lifting, carrying, etc., all
of which were required of him at his job in construction. On
physical examination, it was noted that he walked with a
slight limp, favoring his right knee. Range of motion was
from 0 degrees of extension to 125 degrees of flexion, with
crepitus that was described as a patellofemoral grinding
sound. There was a slight degree of swelling. There was no
evidence of significant tenderness to palpation or any signs
of instability. He was able to perform a fair heel and toe
walk, other than the limp, and he could squat slightly more
than half way down and arise again. There were no signs of
atrophy of his muscles. The diagnosis was osteochondritis of
the right knee with progressive degenerative changes. The
examiner indicated that the on-the-job injury that the
veteran sustained to his right knee exacerbated the extent of
the disability that he had in the knee prior to the incident,
and that it would be very difficult for him to continue
working at his job doing squatting, stooping, climbing,
lifting, carrying, kneeling, etc., because those type of
physical activities and weight bearing would result in
additional discomfort and elicit pain. The examiner also
said that the condition of the veteran’s knee had
deteriorated somewhat over the years and that the problems
with it were being unfavorably impacted by his excessive body
weight. In light of this, the examiner recommended that the
veteran be re-trained for sedentary employment that would
allow him to sit and work.
Wendell J. Newcomb, M.D., reported in a July 1995 statement
that he had seen the veteran in consultation on 3 or 4
occasions in the past for complaints of pain in his knees.
Dr. Newcomb said that the veteran’s job, which required him
to be relatively active, and his having to tend to 15 acres
of land after leaving work were the source of the problems
that he was experiencing with his knees, especially
considering his weight. Dr. Newcomb indicated that the
veteran would have to live with the symptoms related to his
osteoarthritis and osteochondritis (e.g., loss and
degeneration of cartilage, narrowing of joint space, etc.)
because no further treatment could be offered for
improvement, and that he would be better off if he lost
weight. Dr. Newcomb indicated that he diagnosed
chondromalacia affecting both knees and overweight condition.
The veteran voiced similar complaints concerning the status
and condition of his right knee when he was examined by a VA
orthopedic physician in August 1995. On physical
examination, it was indicated he moved about somewhat slowly,
without evidence of a definite limp. X-rays that were taken
the previous year were reviewed and noted as showing signs of
only minor degenerative change. The history of
osteochondritis and arthroscopy surgery were noted in the
diagnostic impression.
E. Coy Irvin, Jr., M.D., reported in a November 1995
statement that the veteran was continuing to experience
problems with his right knee, despite the surgery, and that
no significant improvement was expected to be forthcoming in
his long term prognosis, which was described as “poor.”
Dr. Irvin indicated that he referred the veteran to another
doctor, an orthopedist, to obtain an opinion as to whether he
should undergo additional surgery, and that, considering that
he worked a manual labor type job, this would likely present
difficulty in his future employment in that capacity.
The problems that the veteran was having with his right knee
persisted, and he received additional treatment from private
doctors on later occasions during 1995, and also at various
times during 1996. His complaints were primarily limited to
chronic pain, swelling, and tenderness. It was noted that
range of motion in the knee was full, but productive of pain,
and that there was no evidence of instability or an angular
deformity. Osteoarthritis and osteochondritis continued to
be diagnosed.
In October 1996, the veteran underwent a second arthroscopic
surgical procedure for treatment of his right knee
disability. The operation was performed at the North Florida
Surgery Center and involved a chondroplasty of the medial
femoral condyle and partial lateral meniscectomy with removal
of loose bodies. When seen for follow-up in November 1996,
it was noted that he was doing fairly well. His surgical
scars were described as well healed and asymptomatic. There
was a moderate degree of effusion about the knee. He was
permitted to return to work (in a light duty capacity). He
received further follow-up in December 1996, during which
time it was indicated that he was doing well and that he
could return to his regular job. It was also noted that he
could expect to experience some degree of grating and
grinding in the knee in light of the arthroscopic findings.
When examined by a VA doctor in December 1996, the veteran
said that prolonged periods of weightbearing on his knee
continued to cause him pain. He also said that physical
activity (such as squatting or ascending or descending
stairs) caused him to experience an increased level of pain,
as did sitting or riding in a car for extended periods at a
time with his knee in the flexed position. He said that he
occasionally experienced a feeling of instability during
weightbearing. On physical examination, it was indicated
that he moved about the room with a mild limp, favoring the
knee, that he lacked 5 degrees of terminal extension, and
that he had 120 degrees of flexion. He complained of
discomfort on range of motion testing. He had a moderate
effusion of the knee, and tenderness to palpation was noted
about the patellofemoral joint, as well as pain when pressure
was applied to the patella. Pain which was described as
rather significant was also noted over the area of the medial
femoral condyle. There was no evidence of ligamentous
instability, and McMurray’s testing was negative. He could
perform a fair heel and toe walk, and he could squat
approximately half way down and arise again. X-rays that had
previously been taken were reviewed, as were the records of
the most recent surgery. Degenerative joint disease of the
right knee, status post twice undergoing arthroscopic
surgery, was the diagnosis.
The veteran was most recently examined for compensation
purposes by a VA orthopedic physician in August 1997,
pursuant to the Board’s March 1997 remand. The examiner took
note of the treatment, including surgery, that the veteran
had received for his right knee at various times in the past,
dating back to when he was in the military, and also of the
other relevant medical evidence on file. The veteran’s
complaints concerning his right knee continued to be the
same, primarily pain and swelling, which he said were
aggravated by prolonged physical activity of any sort
(squatting, stooping, ascending or descending stairs, etc.)
or if he was required to sit for an extended period of time
with his knee in the flexed position. He also complained of
difficulty getting a good night’s sleep because of the pain
and of occasional instances of instability. During physical
examination, it was indicated that he walked with no more
than a trace of a limp on the right, that he lacked 5 degrees
of terminal extension in the knee, and that flexion was to
120 degrees. There was evidence of pain and crepitation
during active range of motion testing, particularly at the
limit near full flexion. There was a mild effusion about the
knee, and he had rather generalized tenderness to palpation,
particularly about the patellofemoral joint, the medial
femoral condyle, and the medial joint line. The examiner
indicated that he was unable to demonstrate any instability
in the knee, but that there was marked guarding on the
veteran’s part secondary to pain and apprehension. The
veteran was able to perform a fair heel and toe walk, with
the limp noted on his right during toe walking, and he could
squat to slightly less than half way down and arise again
(with complaints of painful motion). An audible and palpable
degree of crepitus was evident when squatting. There was no
measurable atrophy. After X-rays were taken of the knee, the
diagnosis was marked degenerative joint disease, status post
twice undergoing arthroscopic surgery.
In summarizing his overall impressions of the status of the
veteran’s right knee, the examiner indicated that the
disability was manifested by chronic pain and swelling, which
was worse during prolonged weightbearing and physical
activity (squatting, stooping, ascending or descending stairs
or steps) or if the veteran was required to sit for an
extended period of time with his knee in the flexed position
(such as when riding in a motor vehicle). Objective
manifestations noted to be indicative of functional
impairment due to the pain were said to include his trace
limp, the degree of limitation of motion that he had on
terminal extension and flexion, the pain that was evident
during range of motion testing, and the evidence of swelling,
generalized tenderness, and crepitus. The examiner went on
to note that he did not detect any definite evidence of
incoordination, but that the veteran had impairment insofar
as his ability to execute skilled movements smoothly, citing
the increase in the extent of his symptoms during prolonged
weightbearing and physical activity as a good example of
this. The examiner also indicated that this may be less of a
problem now because the veteran had recently been promoted to
a foreman’s position at his job, but that, even in that
capacity, he would still be required to do some degree of
standing, walking, squatting, stooping, climbing, etc.,
although not as much as previously.
II. Legal Analysis
The veteran’s claim for a rating higher than 10 percent for
his right knee disability is well grounded, meaning his claim
is at least “plausible, meritorious on its own or capable of
substantiation.” 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
in earning capacity that a disability in question would
cause. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate
diagnostic codes identify the various disabilities.
In determining the severity of a disability at issue, VA must
take into account the records of the treatment and
examination that the veteran has received in years past, so
that the rating that is ultimately assigned considers the
totality of his medical situation and circumstances and
provides the best estimation of the severity of his
disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
However, it is the more recent medical and other evidence
that is most probative in determining the present severity of
the disability. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
The assignment of a particular Diagnostic Code is "completely
dependent on the facts of a particular case." Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis
and demonstrated symptomatology. Any change in Diagnostic
Code by a VA adjudicator must be specifically explained. See
Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this
case, the Board has considered whether another rating code is
"more appropriate" than the one used by the RO. See Tedeschi
v. Brown, 7 Vet. App. 411, 414 (1995).
As an initial matter, the Board notes that, although rated at
all times previous to this decision under 38 C.F.R. § 4.71a,
Diagnostic Code 5257, there is no clinical evidence
suggesting that the veteran experiences—or has experienced
at any time in the past—recurrent subluxation or lateral
instability in his right knee, to any extent (i.e., severe,
moderate or slight). When he was being examined by VA
doctors in December 1996 and August 1997, he reported that
there were occasional instances during weightbearing when he
sensed or felt as if his knee was about to “give way.”
However, there was no evidence of instability or subluxation
during the clinical portions of either of those examinations,
and the same was true when he received treatment at Baptist
Hospital in September, October and November 1991,
when he underwent a VA orthopedic examination in December
1991, when he received treatment from private doctors at
various times from December 1991 to February 1992, when he
received treatment in a VA outpatient clinic at various times
from 1992 to 1994, when he underwent a VA orthopedic
examination in March 1995, and when he received treatment
from private doctors at various times during 1995 and 1996.
The absence of a clinical indication or suggestion of the
presence of recurrent subluxation or lateral instability on
any of those occasions means that judging the severity of the
right knee disability according to the criteria of 38 C.F.R.
§ 4.71a, Diagnostic Code 5257, is inappropriate.
The absence of a showing of instability at any time in the
past also means that the veteran is not entitled to
consideration of a separate rating for instability,
that is, separate from any limitation of motion that he may
have in his knee due to osteoarthritis. VAOPGCPREC 23-97
(July 1, 1997; revised July 24, 1997); see also Esteban v.
Brown, 6 Vet. App. 259 (1994), citing 38 C.F.R. § 4.25,
where the Court held that separate disability ratings are
possible in cases where the veteran has separate and distinct
manifestations from a single disease entity.
Osteoarthritis, on the other hand, has been clinically
evident for some time now, and the veteran’s right knee
disability is meant to encompass any functional impairment
that he has which is attributable to the osteoarthritis.
That being the case, the severity of his disability is
determined, in part, on the basis of the extent that there is
limitation of motion in his right knee. Limitation of motion
must be objectively confirmed by findings such as swelling,
muscle spasm or satisfactory evidence of painful motion.
38 C.F.R. § 4.71a, Diagnostic Code 5003.
Records show that the range of motion that the veteran has in
his right knee, although slightly less than what is
considered by VA to be normal, still far exceeds what is
required for a compensable rating under 38 C.F.R. § 4.71a,
Diagnostic Codes 5260 (for flexion of the knee) and 5261 (for
extension of the knee). Under these diagnostic codes, even
the minimum compensable rating of 10 percent requires that
flexion be limited to 45 degrees and extension to 10 degrees.
Id. Consider, for example, that the veteran could fully
extend his knee to 0 degrees (which is normal) when examined
by a VA physician in December 1991, and could flex the knee
to 130 degrees (which is only a few degrees shy of normal,
with normal being to 140 degrees). See 38 C.F.R. § 4.71,
Plate II. Range of motion in the knee was essentially equal
to or only slightly worse when measured on several subsequent
occasions. The veteran could fully extend his knee to 0
degrees and could flex it to 125 degrees when he was examined
by a VA orthopedic physician in March 1995, and the veteran
lacked only 5 degrees of terminal extension and could flex
the knee to 120 degrees when he was examined by a VA
orthopedic physician in December 1996 and August 1997. Many
of the private doctors who tested the range of motion in the
veteran’s knee reported similar findings. Although those
doctors did not give specific numbers to quantify exactly how
far the veteran could extend and flex his knee, they
indicated nonetheless that range of motion, for both
extension and flexion, was either within normal limits or
essentially so. Such was indicated by the private doctors
who treated the veteran from December 1991 to February 1992,
in the March 1992 statement from Dr. Snowden, and in the
records of the treatment that the veteran received from
private doctors at various times during 1995 and 1996. Such
was also indicated by VA doctors who examined and treated the
veteran on an outpatient basis at various times from 1992 to
1994.
When, as in this case, the extent of the limitation of motion
in the knee is noncompensable according to the criteria of
Diagnostic Codes 5260 and 5261, then a minimum rating of
10 percent is still warranted under Diagnostic Code 5003,
considering this regulation in conjunction with the
provisions of 38 C.F.R. § 4.59, if there is other probative
evidence showing that the veteran has painful motion
attributable to the osteoarthritis. See Lichtenfels v.
Derwinski, 1 Vet. App. 484, 488 (1991).
On nearly every occasion that the veteran has been examined
or received treatment for his right knee disability since
service, he has complained of experiencing recurring pain and
discomfort in the knee, particularly during prolonged
weightbearing and physical activity of any sort. Painful
motion was also noted clinically on most of those occasions,
providing support for his subjective complaints, and the
painful motion was indicated to be, at least in part,
attributable to the osteoarthritis (being overweight was also
listed as a contributing factor). See e.g., the report of
the March 1995 VA orthopedic examination when “progressive
degenerative changes” (i.e., osteoarthritis) was diagnosed
and indicated to have been causing him additional pain and
discomfort during physical activities and weightbearing that
required him to use or maneuver his knee—such as when
kneeling, squatting, stooping, climbing, lifting, carrying,
etc. “[F]ull but painful range of motion” was noted
clinically when he received treatment from a private doctor
in November 1995, and “discomfort” and “pain” were also
noted in the knee during the range of motion testing that was
conducted by a VA doctor who examined him in December 1996
and August 1997. Although clearly entitled to a 10 percent
rating under Diagnostic Code 5003 and 38 C.F.R. § 4.59, when
these provisions are read together as required by the Court’s
holding in Lichtenfels, the veteran is already receiving
compensation from VA for his right knee disability at this
level, so there is no additional benefit to be gained from
this liberalizing precedent.
The scars that the veteran has as a residual of the two
surgical procedures that he underwent in October 1991 and
October 1996 have repeatedly been described as well healed
and asymptomatic. Therefore, he would not be entitled to any
additional compensation under the provisions of 38 C.F.R.
§ 4.118, Diagnostic Codes 7803, 7804, or 7805. It is also
worth mentioning that the maximum rating that may be assigned
under these diagnostic codes is 10 percent, which, again, is
the level at which he is rated presently. Similarly, there
has never been a showing of ankylosis (i.e., complete
fixation of the knee in a specific position), impairment of
either the tibia or fibula, or dislocated cartilage following
the surgery.
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held
that, in determining the severity of musculoskeletal
disabilities, VA must consider the extent that the veteran
may have functional impairment as a result of pain,
limitation of motion, weakness, excess fatigability, or
incoordination. Deluca at 207; see also 38 C.F.R. §§ 4.40,
4.45. For the reasons discussed above, the veteran is not
entitled to a rating higher than 10 percent based on the
extent of his pain and limitation of motion. He has other
recurring symptoms, however, that are of sufficient severity
to elevate his rating to the 20 percent level. Of particular
significance in this latter regard are the results of the
most recent VA orthopedic examination that he underwent in
August 1997, which was requested for the specific purpose of
addressing the issues and concerns that were raised by the
Court in DeLuca. During that examination, it was indicated
that he experiences recurring swelling in his knee,
especially during prolonged weightbearing and physical
activity—such as when squatting, stooping, or ascending or
descending stairs/steps, or if required to sit for an
extended period of time with his knee in the flexed
position—such as when riding in a motor vehicle. Moreover,
the swelling and resulting heightened level of discomfort
that he experiences in those type situations were indicated
to cause functional impairment in the sense that he is forced
to walk with a limp, unlike a person who is not affected by a
knee disability. The Board believes that this is
substantively equivalent to saying that he has “weakness and
excess fatigability,” and, although the VA examiner
indicated that he did not detect any definite evidence of
“incoordination” per se, he was just as quick to point out
that the veteran could not “execute skilled movements
smoothly.” As tangible evidence of functional impairment in
this respect, the examiner cited the significant increase in
the severity of the veteran’s symptomatology, and his
increased level of discomfort, during prolonged
weightbearing, during the various types of physical
activities that were alluded to above, and whenever he is
required to sit with his knee flexed in the same position.
The visible discomfort that he experienced when requested to
do the various physical maneuvers by the VA examiner is
sufficient, in light of the objective clinical findings and
pathology, to show that he has functional impairment and
dysfunction related to this. Hatlestad v. Derwinski, 1
Vet. App. 164 (1991). Other symptoms that were noted to be
contributing to his level of functional impairment included
his chronic tenderness and crepitus in the knee.
There is other medical evidence on file as well to support
increasing the rating for the veteran’s right knee disability
to 20 percent. Dr. Snowden indicated in his March 1992
statement that the surgery that the veteran underwent in
October 1991 did not eliminate or significantly reduce the
severity of his symptoms, noting that the veteran was still
limited in what he could do physically, and the VA physician
who examined the veteran in March 1995 indicated that the
condition of his knee had “deteriorated” somewhat over the
years and that he continued to be limited in what he could do
physically (albeit attributing some of his physical
limitations to him being overweight). Dr. Newcomb indicated
as much in his July 1995 statement when he reported that the
veteran would have to learn to “live with” the symptoms
associated with his osteoarthritis and osteochondritis
because no viable alternative forms of treatment were
available, and Dr. Irvin indicated the same in his November
1995 statement, describing the veteran’s long term prognosis
as “poor.” As expected, the second surgical procedure that
the veteran underwent in October 1996 was not very successful
in resolving or appreciably lessening the severity of his
symptoms, as he has continued to complain of experiencing
pain, swelling, tenderness, and crepitus in his knee during
the years since that operation, including when examined by
the VA orthopedic physician in December 1996 and August 1997.
The provisions of 38 C.F.R. § 3.321(b)(1) allow for granting
an even higher rate of compensation on an extraschedular
basis, if it is shown that the circumstances of this case are
so exceptional or unusual that application of the regular
rating criteria and standards would not be appropriate. The
governing norm in these type cases is a showing that the
veteran has had frequent periods of hospitalization on
account of the severity of his service-connected disability
or that there is marked interference with his employment.
Id. The veteran has not been hospitalized for treatment of
his service-connected right knee disability, much less
frequently. Even the two surgical procedures that he
underwent in October 1991 and October 1996 were done on an
outpatient basis. Several of the doctors, both VA and
private, who have treated and evaluated the veteran during
the years since he was in the military have indicated that
the severity of his right knee disability will prevent him
from working at jobs that are labor intensive, such as the
type of work that he has done in the construction industry
for many years. See e.g., the March 1992 statement from Dr.
Snowden, the report of the VA orthopedic examination in March
1995, the July 1995 statement from Dr. Newcomb, the November
1995 statement from Dr. Irvin, and the reports of the VA
orthopedic examinations that were conducted in December 1996
and August 1997. However, each of those doctors were just as
quick to point out that the veteran’s excessive weight was
the primary problem contributing to his ongoing symptoms (and
not the severity of his right knee disability per se), and
that, in spite of his symptoms, he would be able to work at
jobs that were less labor intensive (i.e., sedentary type
jobs). The veteran has obtained employment that is far less
labor intensive that he was subjected to in past years, as he
indicated during the August 1997 VA orthopedic examination
that he was recently promoted to the position of “foreman.”
The VA examiner indicated that the veteran would still have
to do some degree of physical activity in his supervisory
capacity as a foreman (standing, walking, squatting,
stooping, climbing, etc.), but that it would be less so than
previously. The VA examiner went on to note that, because
less physical demands will be placed on the veteran in the
supervisory capacity, less stress will be placed on his right
knee, which, in turn, suggest that the regular schedular
criteria are sufficient to account for the extent of
functional impairment or dysfunction that he will experience
in his new position.
The majority of the evidence shows that the present severity
of the veteran’s right knee disability should be determined
according to the criteria of 38 C.F.R. § 4.71a, Diagnostic
Code 5003, and that the extent of his pain, swelling and
other symptoms is most compatible with a rating at the 20
percent level. Hence, a 20 percent rating must be assigned.
38 C.F.R. § 4.7.
ORDER
A 20 percent rating is granted for the veteran’s right knee
disability, subject to the laws and regulations governing the
payment of VA monetary benefits.
Barry F. Bohan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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